Custom, Excise & Service Tax Tribunal
Iti Ltd vs C.C.E., Allahabad on 7 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
Appeal No.E/247/2009-[SM]
Arising out of Order-in-Appeal No.107/CE/ALLD/2008 dated 18.11.2008 passed by Commissioner (Appeals) Customs & Central Excise, Allahabad.
For approval and signature:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? : No
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? : Yes
3. Whether His Lordship wishes to see the fair copy
of the Order? : Seen
4. Whether Order is to be circulated to the Departmental
Authorities? : Yes
ITI Ltd.
APPELLANT(S)
VERSUS
C.C.E., Allahabad
RESPONDENT (S)
APPEARANCE Shri S.P. Ojha, Consultant for the Appellant (s) Shri Krishnendu Chaudhuri, Supdt. (A.R.) for the Department (s) CORAM:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) DATE OF HEARING & PRONOUNCEMENT: 07.10.2016 FINAL ORDER NO.- 70968/2016 ________ Per Mr. Anil Choudhary :
The appellant, ITI Ltd., is in appeal against Order-in-Appeal No.107/CE/ALLD/2008 dated 18.11.2008 passed by Commissioner (Appeals), refusing the finalization of Provisional Assessment and thereby further refusing the refund.
2. The brief facts of the case are that the appellant vide permission letter dated 07.07.1989 was granted permission for Provisional assessment under the Rule 9B of Central Excise Rules, 1944 and accordingly, as directed the appellant had furnished the bond and security to the satisfaction of the authority. The appellant cleared their products during the period 31.03.2006 to 08.04.2006 under provisional assessment to MTNL. The MTNL finalized the rates on 31.01.2007, which were less than the provisional prices. Accordingly, the appellants vide their application dated 02.11.2007 applied for finalization of the provisional assessment and grant of refund amounting to Rs.39,75,016. In response, thereto SCN dated 20.12.2007 was issued as it appeared to revenue that the claim for finalization of assessment and refund was time barred under the provisions of Section 11 B of the Central Excise Act, 1944. It was also observed that the appellant appears to have not made any request for granting Provisional Assessment during the relevant period. The SCN was contested on the merits, vide Order-in-Original dated 31.01.2008, the claim for provisional assessment to finalize and refund was rejected as time-barred under section 11 B of the Central Excise Act, 1944. Observing that in view of the new Rules with effect from 01.07.2001, the permission granted under the old Central Excise Rules, 1944 was no longer effective and thus the refund under Section 11 B of the Act, 1944 is time barred and thus rejected. Being aggrieved the appellant preferred appeal before Ld. Commissioner (Appeals), who was pleased to reject the appeal, upholding the findings of the Assistant Commissioner.
3. Heard the parties.
4. The learned counsel for the appellant Mr. S.P. Ojha pointed out that the invoice on which the goods are cleared, clearly mentions that the prices indicated are provisional subject to finalization of rates with the customer. Further, he states that the permission of Provisional Assessment granted under the old Rules, did not become redundant and remain valid under the provisions of section 38 A of the Central Excise Act, 1944, wherein Clause-C of Section 38A specifically provides that any amendment, repeal, supersession, etc. unless a different intention appears shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any Rule, notification or orders so amended, repealed, superseded or rescinded. He further points out to the correspondence dated 17.03.2010, wherein the Chief Commissioner, Lucknow had referred the matter of provisional assessment of the appellants-ITI, Raebareli, mentioning the facts of permission for provisional assessment, granted under the facts and circumstances and also admitting that the tender process and the rate finalisation takes substantial time, generally, more than a year from the date of supply. Hence, it is not possible for ITI to submit the details to the Department to finalise assessment within the period of six months. Further stating that ITI had admittedly got permission from Chief Commissioner though dated 01.07.2006 to file the necessary details/documents for finalisation of provisional assessment beyond the statutory time limit. It is accordingly urged by learned counsel that under the facts and circumstances, the provisional assessment should have been finalised and upon finalization, the refund should have been granted subject to verification.
5. The learned A.R. for Revenue relies on the impugned order.
6. Having heard the rival contentions, I hold that under the provisions of section 38A (c) the provisional assessment permission granted under the Central Excise Rule 9B in the year 1989, remained valid and continuing upon enforcement of the new Central Excise Rules, 2002. Accordingly, I hold that the denial to finalise the assessment not treating the same as provisional is bad and against the provisions of law. I also take notice of the fact that that is no deliberate delay or latches on the part of the appellant-assessee, in approaching the Revenue for finalization of the assessment. Accordingly, I allow this appeal with directions to the concerned Assistant Commissioner to finalise the Provisional Assessment under the provisions of Rule 7 of Central Excise Rules, 2002 and grant the resultant refund with interest with effect from three months after 07.11.2007. Accordingly, this appeal stands allowed by way of remand. The appellant will be entitled to consequential benefits, if any, as per Law.
(Dictated and Pronounced in the open Court) SD/ (ANIL CHOUDHARY) MEMBER (JUDICIAL) Mishra 4 Appeal No.E-247/09